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determining pretrial habeas claim not cognizable because "Mandola [was] claiming that the retaliation enhancement provision in the aggravated-assault statute violates equal protection, but he [did] not otherwise challeng[e] the legality of the aggravated-assault statute under which he [stood] charged"
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NO. 03-16-00223-CR
02-14-2018
Ex parte Damian Chris Mandola
FROM THE DISTRICT COURT OF HAYS COUNTY, 274TH JUDICIAL DISTRICT
NO. CR-15-0858-HC , HONORABLE GARY L. STEEL, JUDGE PRESIDING MEMORANDUM OPINION
Appellant Damian Chris Mandola, who stands charged with the offense of aggravated assault with a deadly weapon, appeals from the district court's order denying his pretrial application for writ of habeas corpus. In two issues on appeal, Mandola asserts that the statute defining the offense is facially unconstitutional, violating his rights to due process and equal protection. We will affirm the district court's order.
BACKGROUND
In its indictment charging Mandola with the offense, the State alleged that:
On or about the 5th day of April, 2014, in Hays County, Texas, the Defendant, Damian Mandola, did then and there intentionally or knowingly threaten Jeffrey Ogle with imminent bodily injury and did then and there use or exhibit a deadly weapon, to-wit: a knife, and or a hammer or mallet, during the commission of said assault, and the defendant was then and there acting in retaliation against or on account of the service of Jeffrey Ogle as a person, as a witness, prospective witness and who had reported the occurrence of a crime.The indictment tracked the language of Section 22.02(b)(2)(C) of the Texas Penal Code, which provides that an aggravated assault, normally a second-degree felony, is enhanced to a first-degree felony if the offense is committed "in retaliation against or on account of the service of another as a witness, prospective witness, informant, or person who has reported the occurrence of a crime."
Prior to trial, Mandola filed a motion to quash the indictment and an application for writ of habeas corpus. In his motion to quash, Mandola asserted that the retaliation portion of the indictment failed to give him adequate notice of the acts that he had allegedly committed because, among other reasons, it failed to allege a culpable mental state. The district court denied the motion to quash.
In his amended habeas application, Mandola argued that the retaliation provision of the aggravated-assault statute was facially unconstitutional and violated his rights to due process and equal protection under the United States and Texas constitutions. Specifically, Mandola claimed that the provision violated due process by failing to specify a culpable mental state and failing to define certain terms, thereby rendering the provision unconstitutionally vague. Mandola further asserted that the provision violated equal protection by requiring a lesser degree of culpability for individuals accused of aggravated assault involving retaliation than for individuals accused of aggravated assault against public servants and security officers. Following a hearing at which only argument was presented, the district court denied relief. This appeal followed.
See U.S. Const. amend. V, XIV; Tex. Const. art. 1, §§ 3, 19.
STANDARD AND SCOPE OF REVIEW
"Pretrial habeas, followed by an interlocutory appeal, is an extraordinary remedy." "This remedy is reserved 'for situations in which the protection of the applicant's substantive rights or the conservation of judicial resources would be better served by interlocutory review.'" "Generally, pretrial habeas is not available to test the sufficiency of the charging instrument or to construe the meaning and application of the statute defining the offense charged." However, pretrial habeas is available "when the applicant alleges that the statute under which he or she is prosecuted is unconstitutional on its face; consequently, there is no valid statute and the charging instrument is void." "The distinguishing characteristic of a facial challenge to a penal statute . . . is that it contends the statute is unconstitutional regardless against whom it is applied, such that it can be decided based on the face of the statute alone, without regard to a defendant's particular circumstances."
Ex parte Perry, 483 S.W.3d 884, 895 (Tex. Crim. App. 2016) (citing Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App. 2010)).
Id. (quoting Ex parte Weise, 55 S.W.3d 617, 620 (Tex. Crim. App. 2001)).
Ellis, 309 S.W.3d at 79.
Weise, 55 S.W.3d at 620.
Ex parte Perry, 471 S.W.3d 63, 83-84 (Tex. App.—Austin 2015) (citing State ex rel. Lykos v. Fine, 330 S.W.3d 904, 908-09 (Tex. Crim. App. 2011); Ellis, 309 S.W.3d at 79-82), affirmed in part, reversed in part on other grounds, 483 S.W.3d 884 (Tex. Crim. App. 2016).
Whether a statute is facially constitutional is a question of law that we review de novo. Unless First-Amendment freedoms are implicated (and Mandola does not contend that they are here), we begin with the presumption that the statute is valid and that the Legislature has not acted unreasonably or arbitrarily in enacting it. "A reviewing court must make every reasonable presumption in favor of the statute's constitutionality, unless the contrary is clearly shown." "The burden normally rests upon the person challenging the statute to establish its unconstitutionality." Moreover, "[a] party raising a facial challenge to the constitutionality of a statute must demonstrate that the statute operates unconstitutionally in all of its applications." A facial challenge "asserts that there are no factual circumstances under which the statute would be constitutional" and is thus "extremely difficult to prove."
Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013); Perry, 471 S.W.3d at 91.
See Lo, 424 S.W.3d at 15; State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013); see also Tex. Gov't Code § 311.021(1) ("In enacting a statute, it is presumed that compliance with the constitutions of this state and the United States is intended.").
Peraza v. State, 467 S.W.3d 508, 514 (Tex. Crim. App. 2015) (citing Ex parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App.1978)).
Lo, 424 S.W.3d at 15 (citing Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002)).
Lykos, 330 S.W.3d at 908 (citing Gillenwaters v. State, 205 S.W.3d 534, 536 n.2 (Tex. Crim. App. 2006)).
Id.
ANALYSIS
Due Process
In relevant part, the aggravated-assault statute provides the following:
(a) A person commits an offense if the person commits assault as defined in Section 22.01 and the person:
. . . .
(2) uses or exhibits a deadly weapon during the commission of the assault.
(b) An offense under this section is a felony of the second degree, except that the offense is a felony of the first degree if:
. . . .
(2) regardless of whether the offense is committed under Subsection (a)(1) or (a)(2), the offense is committed:
Mandola was charged under Section 22.02(b)(2)(C). In his first issue, Mandola asserts that this provision is unconstitutionally vague and thus violates his rights to due process under the United States and Texas constitutions. Specifically, Mandola claims that the provision: (1) fails to expressly allege a culpable mental state; (2) fails to define the terms "witness" or "prospective witness"; and (3) fails to specify to whom the clause "who has reported the occurrence of a crime" refers.(A) by a public servant acting under color of the servant's office or employment;
(B) against a person the actor knows is a public servant while the public servant is lawfully discharging an official duty, or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant;
(C) in retaliation against or on account of the service of another as a witness, prospective witness, informant, or person who has reported the occurrence of a crime; or
(D) against a person the actor knows is a security officer while the officer is performing a duty as a security officer . . . .[]
Mandola has made no argument, either in the court below or on appeal, that the Texas Constitution provides him with greater or different due-process protections than the United States Constitution. Accordingly, we will address his federal and state claims together. See, e.g., Arnold v. State, 873 S.W.2d 27, 33 (Tex. Crim. App. 1993); Muniz v. State, 851 S.W.2d 238, 251-52 (Tex. Crim. App. 1993); Davidson v. State, 249 S.W.3d 709, 724 n.12 (Tex. App.—Austin 2008, pet. ref'd); Garay v. State, 940 S.W.2d 211, 216 (Tex. App.—Houston [1st Dist.] 1997, no pet.).
Mandola first contends that Section 22.02(b)(2)(C) is unconstitutionally vague because it fails to expressly allege a culpable mental state. According to Mandola, "[t]he gravamen of the offense of aggravated assault involving retaliation is that the defendant had actual knowledge—he anticipated that the complainant would be a witness against him—and threatened to harm the complainant if he testified." "Despite this gravamen of the offense," Mandola continues, "the retaliation portion of the statute (or indictment) fails to expressly allege a culpable mental state, e.g., that Mandola acted 'in retaliation or on account of the service of another' knowing that the other was a witness, prospective witness, informant, or person who has reported the occurrence of a crime." Mandola claims that the failure to expressly allege a culpable mental state "would not only be at odds" with Section 6.02 of the Penal Code, which requires that an offense allege a culpable mental state "unless the definition plainly dispenses with any mental element," but also with two other enhancement provisions in the aggravated-assault statute that "expressly require that the defendant have actual knowledge" of the victim's status.
See Tex. Penal Code § 6.02(b) ("If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element."), (c) ("If the definition of an offense does not prescribe a culpable mental state, but one is nevertheless required under Subsection (b), intent, knowledge, or recklessness suffices to establish criminal responsibility.").
See id. § 22.02(2)(b)(B) (enhancing aggravated assault to first-degree felony if offense is committed "against a person the actor knows is a public servant") (emphasis added), (D) (enhancing aggravated assault to first-degree felony if offense is committed "against a person the actor knows is a security officer") (emphasis added).
Although not briefed by the parties, we must first address whether Mandola's claim is cognizable on pretrial habeas. Generally, "a claim is cognizable in a pretrial writ of habeas corpus if, resolved in the defendant's favor, it would deprive the trial court of the power to proceed and result in the appellant's immediate release." "Because an interlocutory appeal is an extraordinary remedy, appellate courts have been careful 'to ensure that a pretrial writ is not misused to secure pretrial appellate review of matters that in actual fact should not be put before appellate courts at the pretrial stage.'" "A defendant may use a pretrial writ of habeas corpus only in very limited circumstances." "The accused may challenge the (1) State's power to restrain him at all, i.e., the existence of probable cause, (2) the manner of his restraint, i.e., the denial of bail or conditions attached to bail, and (3) certain issues that would bar prosecution or conviction."
See Ellis, 309 S.W.3d at 79 ("[W]hether a claim is even cognizable on pretrial habeas is a threshold issue that should be addressed before the merits of the claim may be resolved.").
Ex parte Smith, 185 S.W.3d 887, 892 (Tex. Crim. App. 2006) (citing Weise, 55 S.W.3d at 619).
Ex parte Doster, 303 S.W.3d 720, 724 (Tex. Crim. App. 2010) (quoting Ex parte Smith, 178 S.W.3d 797, 801 (Tex. Crim. App. 2005)).
Ex parte Paxton, 493 S.W.3d 292, 297 (Tex. App.—Dallas 2016, pet. ref'd) (citing Ex parte Smith, 178 S.W.3d 797, 801 (Tex. Crim. App. 2005)); see also Ex parte Carter, 514 S.W.3d 776, 782 (Tex. App.—Austin 2017, pet. ref'd).
Paxton, 493 S.W.3d at 297; see also Perry, 483 S.W.3d at 895 (listing claims that are and are not cognizable on pretrial habeas; cognizable claims include double-jeopardy violations, bail claims, and facial constitutional challenges to validity of statute; non-cognizable claims include speedy-trial violations, collateral estoppel, denials of motions to suppress, charging-instrument defects, and as-applied constitutional challenges to validity of statute).
Mandola's complaint here is that the retaliation provision in the aggravated-assault statute fails to expressly allege a culpable mental state. A similar complaint was raised by the defendant in Ex parte Weise. In that case, the First District Court of Appeals addressed "whether a statute prohibiting the dumping of trash is unconstitutional for not requiring proof of a culpable mental state." Weise had filed both a motion to quash the information charging him with that offense and a pretrial application for writ of habeas corpus, asserting that the statute was unconstitutional "as applied to him" because of the failure of the charging instrument to allege a culpable mental state. Specifically, Weise argued that, "although the illegal dumping statute does not specifically require it, a culpable mental state is mandated by [Section 6.02 of] the Texas Penal Code. The court of appeals agreed with Weise. Observing that "[t]he illegal dumping statute is devoid of express language that prescribes a culpable mental state," but concluding that the statute "cannot be construed to plainly dispense with a mental element," the court held that "a culpable mental state of at least 'recklessly' is [] required for the illegal dumping provisions [of the challenged statute]."
23 S.W.3d 449 (Tex. App.—Houston [1st Dist.] 2000), rev'd, 55 S.W.3d 617 (Tex. Crim. App. 2001).
Id. at 450.
Id. at 451.
Id. at 452 (citing Tex. Penal Code § 6.02).
Id. at 452-55.
Id. at 455.
The Court of Criminal Appeals granted review to address "whether a pretrial writ of habeas corpus may issue on the ground that a penal statute is being unconstitutionally applied because of the allegations in the indictment or information." The court concluded that "it may not." Emphasizing the general rule that "when there is a valid statute or ordinance under which a prosecution may be brought, habeas corpus is generally not available before trial to test the sufficiency of the complaint, information, or indictment," the court observed that Weise's claim did not fall under one of the "recognized" exceptions to the rule. The court explained:
Weise, 55 S.W.3d at 618.
Id.
Id. at 620.
Weise is not claiming that the statute itself is unconstitutional. He is not claiming that the trial court lacked the power to proceed. Rather, he is claiming that the statute as applied via the information is unconstitutional because it fails to allege a mens rea. This is, in reality simply an attack on the charging instrument.The court further concluded that "the issue of whether the illegal dumping statute requires a culpable mental state is not yet ripe for review" and that "[a]ppeal of the trial court's denial of the motion to quash provides Weise with an adequate remedy at law."
Id.
Id. at 621.
We similarly conclude that Mandola's claim is not cognizable on pretrial habeas. In his motion to quash the indictment, Mandola asserted that "[t]he retaliation portion of the indictment fails to expressly allege a culpable mental state." Mandola later made that same assertion in his habeas application. Although Mandola broadened the scope of his complaint to include the retaliation portion of the statute itself, he maintained that "the retaliation portion of the indictment fails to expressly allege a culpable mental state." Thus, the substance of Mandola's complaint is that the statute as applied to him via the indictment is unconstitutional because it fails to allege a culpable mental state as required by Section 6.02 of the Penal Code. As the Court of Criminal Appeals held in Weise, such a claim is "in reality simply an attack on the charging instrument" and is thus not cognizable on pretrial habeas.
Id. at 620; see also Ex parte Ingram, 533 S.W.3d 887, 891-94 (Tex. Crim. App. 2017) (explaining that certain claims that implicated "anti-defensive issues" in statute, including "claims that the [challenged] provisions impermissibly negate the mens rea requirement of the statute in violation of the right to due process" were not cognizable in pretrial habeas); Ellis, 309 S.W.3d at 79 (concluding that applicant's assertion that statute is facially unconstitutional "is not, by itself, enough. If a claim designated as a facial challenge is in fact an as-applied challenge, courts should refuse to consider the merits of the claim."); Smith, 185 S.W.3d at 892-93 (concluding that in pari materia claim was not yet ripe for review and thus not cognizable on pretrial habeas); Smith, 178 S.W.3d at 803 (referring to "specificity defects" in charging instruments as "reparable" matters that "do not destroy a trial court's power or jurisdiction to proceed").
Mandola further asserts that Section 22.02(b)(2)(C) is unconstitutionally vague because it fails to define the terms "witness" or "prospective witness" and fails to specify to whom the clause "who has reported the occurrence of a crime" refers. These claims are also not cognizable on pretrial habeas. "Generally, pretrial habeas is not available to test the sufficiency of the charging instrument or to construe the meaning and application of the statute defining the offense charged." Resolving Mandola's complaints here would necessarily require us to construe the meaning of the statutory terms "witness," "prospective witness," and "person who has reported the occurrence of a crime," which we cannot do at this juncture. Moreover, the Court of Criminal Appeals has emphasized that "unless First Amendment freedoms are implicated, a facial vagueness challenge can succeed only if it is shown that the law is unconstitutionally vague in all of its applications." Here, Mandola is not challenging the vagueness of the retaliation provision in all of its applications. Specifically, he is not contending that the term "informant" is vague. Instead, his challenge is limited to the statutory terms specified in the indictment—"witness," "prospective witness," and "person who has reported the occurrence of a crime." Thus, Mandola's complaints are "in reality simply an attack on the charging instrument," and we may not consider the merits of such an attack on pretrial habeas.
Ellis, 309 S.W.3d at 79.
See id. at 79-82; Smith, 185 S.W.3d at 892-93; Weise, 55 S.W.3d at 620-21; Paxton, 493 S.W.3d at 302-03; see also In re Shaw, 204 S.W.3d 9, 15-16 (Tex. App.—Texarkana 2006, pet. ref'd) (explaining that due-process claims, including challenges to the vagueness of a statute, "are not cognizable on a pretrial application for habeas relief").
Ellis, 309 S.W.3d at 80.
See Weise, 55 S.W.3d at 620; see also Ex parte Gonzalez, 525 S.W.3d 342, 350 (Tex. App.—Houston [14th Dist.] 2017, no pet.).
We overrule Mandola's first issue.
Equal protection
In his second issue, Mandola asserts that Section 22.02(b)(2)(C) violates his equal-protection rights under the United States and Texas constitutions. Specifically, Mandola claims that he and others charged with the offense of aggravated assault involving retaliation are treated differently than defendants charged with aggravated assault against public servants and against security officers. According to Mandola, although those other aggravated-assault offenses expressly require that the defendant have knowledge of the victim's status, aggravated assault involving retaliation expressly requires no such knowledge. Mandola further contends that there is no "rational basis" for "treating anyone charged with aggravated assault involving retaliation differently than someone charged with aggravated assault involving either a public servant or a security officer," and "the proof required should be the same on all of them."
Again, we consider Mandola's federal and state claims together because he has made no argument that the Texas Constitution provides greater or different equal-protection rights than its federal counterpart. See Arnold, 873 S.W.2d at 33; Muniz, 851 S.W.2d at 251-52; Davidson, 249 S.W.3d at 724 n.1; Garay, 940 S.W.2d at 216.
See Tex. Penal Code § 22.02(2)(b)(B) (enhancing aggravated assault to first-degree felony if offense is committed "against a person the actor knows is a public servant") (emphasis added), (D) (enhancing aggravated assault to first-degree felony if offense is committed "against a person the actor knows is a security officer") (emphasis added).
Again, "a claim is cognizable in a pretrial writ of habeas corpus if, resolved in the defendant's favor, it would deprive the trial court of the power to proceed and result in the appellant's immediate release." Thus, "a claim that a statute is unconstitutional on its face may be raised by pretrial writ of habeas corpus because the invalidity of the statute would render the charging instrument void." However, "pretrial habeas is not appropriate when the question presented, even if resolved in the defendant's favor, would not result in immediate release." Here, Mandola is claiming that the retaliation enhancement provision in the aggravated-assault statute violates equal protection, but he is not otherwise challenging the legality of the aggravated-assault statute under which he stands charged. Thus, even if resolved in Mandola's favor, this claim would not deprive the district court of the power to proceed or result in Mandola's immediate release. The portion of the indictment alleging retaliation would be declared void, but the indictment charging Mandola with aggravated assault, minus the enhancement allegation, would remain. Consequently, Mandola's equal-protection claim is also not cognizable on pretrial habeas.
Smith, 185 S.W.3d at 892 (citing Weise, 55 S.W.3d at 619).
Ex parte Flores, 483 S.W.3d 632, 638 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd) (citing Weise, 55 S.W.3d at 620).
Doster, 303 S.W.3d at 724 (citing Weise, 55 S.W.3d at 619).
We overrule Mandola's second issue.
CONCLUSION
We affirm the order of the district court.
/s/_________
Bob Pemberton, Justice Before Chief Justice Rose, Justices Puryear and Pemberton Affirmed Filed: February 14, 2018 Do Not Publish